Strengthen Rules Preventing Candidate Coordination with Super PACs

TK

February 4, 2016

In the 2016 presidential race, most candidates have implicitly chosen a favored super PAC. There is often little separation between the candidate and these “candidate-specific super PACs.”[1] Several candidates even appeared to delay formally entering the race so they could fully coordinate with a supportive super PAC as long as possible. Candidates have also fundraised prominently for super PACs, and their top aides now work for the groups rather than on the candidates’ campaign teams.[2]

These activities send a strong signal to donors that checks sent to favored super PACs will be treated just like a direct contribution to the candidate. It should be no surprise that in the first half of 2015, $273 million, almost all of the outside money raised, went to groups reported to have ties to one particular candidate.[3] And as the Brennan Center has shown, these activities extend to the state level as well. Candidates for governor, attorney general, or state legislator can often exponentially increase their fundraising potential by working with an outside group with close ties to the candidate.[4]

These “shadow campaigns” mock the campaign finance system. When candidates help raise money for a super PAC and also have a say in how that money is spent (whether it buys political advertisements, what advertisements it buys, and where the advertisements air), that spending becomes virtually indistinguishable from that of campaigns. As a result, the current limits on direct contributions to candidates, which the Supreme Court has long recognized as an important check on corruption, become meaningless. Allowing collaboration between super PACs and campaigns also threatens the efficacy of public financing systems, which depend on participation of candidates who are removed from big money.

When the Supreme Court removed limits on election spending in Citizens United, the majority assumed the newly freed spenders would follow laws requiring them to operate independently of candidates. If spending was coordinated with candidates, it could be corrupting, and could therefore be subject to limitations. Six years later, candidates and allegedly independent super PACs are making a mockery of the law by coordinating their activities in plain sight.

The good news is that regulations preventing such coordination are achievable and can prevent the worst abuses. Some states have already shown us how to do this.

Proposal

A simple set of rules can ensure that candidates and their chosen super PACs maintain a proper distance.[5] Some states and cities have already enacted many of these restrictions, and there are proposals to improve rules for federal elections.[6]

  • Candidates should not raise money for super PACs that back them. The act of fundraising is a clear indication that the candidate supports the group’s activities, creating a threat of corruption.
     
  • Any staffer who works for the candidate should be barred for a few years from working for a super PAC that supports the candidate.
     
  • Super PACs formed by a candidate or at the candidate’s suggestion should be prohibited from making independent expenditures in support of the candidate.
     
  • The same major outside vendors or strategists who work for the candidate should be barred from simultaneously working for a super PAC supporting the candidate.
     
  • Outside groups’ ads should be treated as a contribution to the candidate if they republish the candidate’s campaign material or use video or audio footage recorded by the candidate.

These rules will not cure all of the ills created by super PACs. Even without coordination between super PACs and candidates, millions of dollars in spending surely gives wealthy donors unfair influence. That won’t change until the Supreme Court reconsiders Citizens United. Nevertheless, in the meantime, implementing strong rules like those detailed above can curb coordination of unlimited outside spending and better protect the integrity of other campaign finance reforms not implicated by Supreme Court decisions, like public financing.

Why This Can Be Achieved

State and local efforts since Citizens United show that coordination rules can be passed and can successfully prevent super PACs from working closely with candidates. Connecticut and California both have comprehensive laws to prevent candidates from fundraising for super PACs and to ensure that outside groups may not hire a candidate’s staffers or consultants.[7] And cities such as Philadelphia and Santa Fe have amended their rules to prevent similar abuses.[8] Congress could likewise pass a law that would ensure super PACs operate independently from candidates.[9]

The Supreme Court has long recognized that coordination rules are necessary to preserve the independence of outside groups and to make contribution limits meaningful. In its seminal 1976 decision, Buckley v. Valeo, the Court explained that “prearrangement and coordination of an expenditure” would create a heightened corruption risk.[10] Justice Anthony Kennedy voted with six other Justices to uphold federal coordination rules in 2003, and his Citizens United opinion emphasized that corporate spending was permissible only when it was made in a truly independent manner.

Resources

Next: Reform the FEC to Ensure Fair and Vigorous Law Enforcement 


[1] Brent Ferguson, Brennan Ctr. for Justice, Candidates & Super PACs: The New Model in 2016 (2015), available at http://www.brennancenter.org/publication/candidates-super-pacs-new-model-2016.

[2] Jim Rutenberg, The Next Era of Campaign-Finance Craziness Is Already Underway, N.Y. Times, Apr. 21, 2015, available at http://www.nytimes.com/2015/04/21/magazine/the-next-era-of-campaign-fina....

[3] Ian Vandewalker, Brennan Ctr. for Justice, Shadow Campaigns: The Shift in Presidential Campaign Funding to Outside Groups 3 (2015), available at http://www.brennancenter.org/sites/default/files/publications/Shadow_Campaigns.pdf.

[4] Chisun Lee, Brent Ferguson & David Earley, Brennan Ctr. for Justice, After Citizens United: The Story in the States (2014), available at https://www.brennancenter.org/publication/after-citizens-united-story-st....

[5] Chisun Lee et al., Brennan Ctr. for Justice, After Citizens United: The Story in the States (2014), available at https://www.brennancenter.org/publication/after-citizens-united-story-states.

[6] Press Release, Democracy 21, Campaign Finance Reform Bill Introduced By Representatives David Price and Chris Van Hollen Last Week (Sept. 23, 2014), available at http://www.democracy21.org/legislative-action/press-releases-legislative-action/campaign-finance-reform-bill-introduced-by-representatives-david-price-and-chris-van-hollen-last-week/.

[7] Conn. Gen. Stat. § 9-601c (2013), Cal. Code Regs. tit. 2, § 18225.7 (2015).

[9] S. 1838, 114th Cong. (2015).

[10] Buckley v. Valeo, 424 U.S. 1, 47 (1976).